Joseph L. Fink III, BSPharm, JD
Can an individual charged with possession of methamphetamine precursors successfully move to suppress evidence from a pharmacy's state-mandated record log?
ISSUE OF THE CASE
Law enforcement officials review the state-mandated record log in a pharmacy containing information about the purchase of products that could be used as methamphetamine precursors, and use that information to arrest and prosecute an individual. May the defendant be successful with a motion to suppress that evidence and prohibit its use during trial?
FACTS OF THE CASE
A patient from a southern state purchased products at one pharmacy containing 5.76 g of pseudoephedrine and then purchased similar products bearing 4.80 g at another pharmacy the next day. Detectives from the local Drug Task Force uncovered the purchases during a review of the records at the pharmacies. A state statute requires that a person making such purchases show a government-issued ID and sign a log for such transactions maintained at the pharmacy.
The patient was indicted by a grand jury for unlawful possession of meth precursors in an amount exceeding quantity (9.0 g) and time (30-day period) limits. Under state law, this constitutes prima facie evidence of the intent to use the product for illicit production of meth or another controlled substance. Prima facie evidence is that which is deemed good and sufficient to establish a fact and which, if not contradicted or rebutted, will suffice.
The attorney representing the defendant- patient filed a motion to suppress or exclude the information from the pharmacy logs from being introduced into evidence during trial. That motion was denied by the trial court judge. The defendant subsequently pled guilty to the charge of possessing meth precursors with the condition that he be permitted to appeal the trial court’s ruling that the pharmacy record log information could be used.
On appeal, 2 arguments were advanced regarding why the record log information should be excluded from use at trial. First was a cluster of arguments based on the Fourth Amendment to the US Constitution dealing with prohibition of unreasonable governmental searches and seizures. The second was an argument based on the Health Insurance Portability and Accountability Act (HIPAA). (The second issue so arose in another case— see May 2010 Pharmacy Times.)
THE COURT'S RULING
The state court of appeals upheld the decision of the trial court judge that the evidence from the pharmacy record logs was admissible. It was not to be excluded from use during trial as the defendant argued.
THE COURT'S REASONING
The appellate court first reviewed the provision in state statutes that authorized law enforcement officials to scrutinize pharmacy log records:
A log shall be kept of each day’s transactions. The log shall be:
(b) Subject to random and warrantless inspection by city, county, or state law enforcement officers….
The appellate judges emphasized that “a statute is presumed to be constitutional unless it clearly offends the limitations and prohibitions of the Constitution. The one who questions the validity of the act bears the burden to sustain such a contention.” Further, they noted that “the test of the constitutionality of any statute is whether it is unreasonable or arbitrary.” Noting that a statute will be deemed constitutional “if a reasonable and legitimate public purpose for it exists,” the court concluded that there was such a purpose here—fostering a decline in cases of illicit manufacturing of meth.
The court continued by addressing the long-standing doctrine that administrative inspections of closely regulated businesses are exempt from the requirement that a search warrant be issued based upon probable cause. This rule has its origins with administrative inspections of places where firearms are manufactured and distributed, where distilled spirits are manufactured and sold, and, most recently, has been applied to nuclear power plants. The defendant here argued that there was no exception for searches conducted of the records of pharmacies under this doctrine and, as a result, the warrantless searches of records related to his purchases at the pharmacies were unconstitutional.
The court took a different view, however. Under the approach adopted by the appellate judges in this case, any objection to a warrantless search of those pharmacy records should have been raised by the operators of the pharmacy, not by the individual who made the purchases. The court pointed out that the purchaser has “no proprietary interest in the records of the pharmacy.”
Finally, the court dealt with the HIPAAbased argument by ruling that the purchaser of nonprescription medications has no expectation of privacy under that statute because records of purchases of OTC medications are not “health information intended to remain protected.”
Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.